State Records Committee Appeal 93-02

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JOHN PACE, vs. UTAH DEPT. OF CORRECTIONS.

DECISION AND ORDER, CASE NO 93-02

The sole issue in this appeal is whether a request for records filed by Mr. Pace unreasonably duplicates a prior request made by him, thus justifying the Department's refusal to respond to the request. The State Records Committee, having reviewed the written materials submitted by the parties, and having heard the oral argument and testimony of the parties on May 4, 1993, now issues the following decision and order.

2. The Department apparently did not respond to the request within the time limits specified in the Government Records Access and Management Act (GRAMA). See Utah Code Ann. 63-2-204.

3. GRAMA provides that the failure of a governmental entity to respond within the required time limits in equivalent to a determination denying access. Utah Code Ann 63-2-204(7).

4. After expiration of the time limit for response the attorney for Mr. Pace contacted the Department's records officer by telephone and was informed that the request would be denied.

5. Mr. Pace then filed an action in the Third District Court seeking to compel the Department to grant his request.

6. About the same time, and prior to being served with a summons in the lawsuit, the Department issued a written response to Mr. Pace's original request. That response granted the request in part and denied it in part. It also notified Mr. Pace of his right to appeal the partial denial to the Executive Director of the Department.

7. Mr. Pace did not appeal the partial denial to the Executive Director but rather continued to try to compel compliance through the District Court.

8 By a letter dated March 1, 1993, Mr. Pace again presented the same request for records to the Department, apparently seeking to start the whole process over and cure any defects in his appeal at the denial of his former request.

9. By a letter dated March 9, 1993, the Department informed Mr Pace that it had already responded to the prior request, that it considered the March request to be unreasonably duplicative of the prior request, and that it would therefore not respond further.

10. Mr. Pace appealed that decision to the Executive Director of the Department of Corrections. The Executive Director affirmed the Department's decision and this appeal followed.

11. On or about April 1, 1993, the Third District Court dismissed the lawsuit on the grounds that Mr. Pace did not exhaust his administrative remedies.

2. GRAMA also provides that "any person aggrieved by a governmental entity's access determination...may appeal the determination within 30 days to the chief administrative officer of the governmental entity..." Utah Code Ann. 63-2-401(1) (a) (1992).

3. The Department contends that the 30-day time limit for filing an appeal with the chief administrative officer is jurisdictional and that Mr. Pace lost his right to appeal because he did not file a notice of: appeal within 30 days of the Department's written response of November 20, 1992.

4. The Department further contends that if it is required to respond to the March request, which is a mere duplicate of the November request, the result is that the time limits for filing an appeal under GRAMA are made totally meaningless because such a ruling would allow a requester who did not file an appeal within the required time to circumvent the time limits by merely starting the whole process over. Hence, the Department argues that the March request "unreasonably duplicates" the prior request.

5. We generally agree with the Department's contentions. However, in this case we find that the March request did not unreasonably duplicate the prior request because Mr. Pace did file an appeal of the November denial within the time limit, even though he incorrectly filed it in the in the District Court rather than with the Executive Director. If the Department had issued its written denial within the GRAMA time limits, it is likely that the appeal would have been filed in the proper place because GRAMA requires that a denial contain a statement that the requester has the right to appeal to the chief administrative officer of the agency. The denial must also contain information regarding the time limit for filing an appeal and the name and business address of the chief administrative officer. Utah Code Ann. 63-2-205(2). Because the whole problem could have been avoided if the Department had simply complied with GRAMA and issued its written response within the required time limits, we find that the second request is not unreasonably duplicative.

6. The Department also contends that, because Mr. Pace did not appeal to the Executive Director within 30 days after he received his written notice of his appeal rights in November of 1992, the right to appeal has been lost and any further proceedings are barred by the principle of res judicata. We are not convinced that that principle applies in this case.

ORDER

THEREFORE IT IS ORDERED THAT the Department respond to the March request in accordance with the requirements of GRAMA. The Department shall respond to the request as soon as reasonably possible but no later than 10 business days after the date of this order.

RIGHT TO APPEAL

Pursuant to Utah Code Ann. 63-2-404 this Decision and Order may be appealed to the District Court by either party. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann 63-2-404 (1992). The court is required to make its decision de novo In order to protect its rights on appeal, a party may wish to seek advice from an attorney.